SHYAMAL KANTI DANDA Vs. CHUNILAL CHOUDHARY

JUDGEMENT

(1.) We heard Mr. Gobind Mukhoty, learned counsel for the petitioner and Mr. F. S. Nariman, learned counsel for the respondent.

(2.) The respondent filed T. S. No. 470 of 1975 against the petitioner for his eviction from the premises occupied by him. The petitioner contested the suit as per his written statement. Only one contention is worth-noting. It was contended on behalf of the petitioner that he is a permanent licensee of the premises without any obligation to pay rent. After evidence on either side was recorded and closed, the learned Munsif set down the suit for hearing oral arguments on June 26, 1981 on which date the respondent was present but the petitioner and his advocate were absent. The learned Munsif proceeded to deliver the judgment on merits and application for setting aside what was styled as ex parte decree under O. 9, R. 13 CPC was moved on behalf of the petitioner which came to be dismissed as not maintainable. After an unsuccessful appeal, the petitioner filed an appeal against what was styled as ex parte decree in the Court of the District Judge, Alipore. He filed an application praying for condonation of delay of 386 days in preferring the appeal on the ground that he was prosecuting under legal advice a remedy in another civil Court, to be precise for setting aside the ex parte decree under O. 9, R. 13 CPC, but as that Court was unable to grant relief, the time spent bona fide in prosecuting this remedy must be excluded in computing the period of limitation. The learned Judge declined to condone the delay and after an unsuccessful revision petition in the High Court, the petitioner has approached this Court under Art. 136 of the Constitution.

(3.) On a notice of the petition being served upon the respondent, Mr. F. S. Nariman, learned counsel appeared for the respondent.